Opinion
H046124
06-18-2020
THE PEOPLE, Plaintiff and Respondent, v. NESTOR ALEGRIA HERNANDEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1638927)
Defendant Nestor Alegria Hernandez was convicted by jury trial of second degree murder (Pen. Code § 187, subd. (a)(1)), driving under the influence of alcohol and causing bodily injury (Veh. Code, § 23153, subd. (a)), and driving with a blood alcohol concentration of 0.08 percent or more and causing bodily injury (Veh. Code, § 23153, subd. (b)). The jury also found true allegations that defendant had suffered two prior driving under the influence of alcohol convictions (Veh. Code, § 23152, subd. (b)), and that defendant had a blood alcohol concentration of 0.15 percent or more (Veh. Code, § 23578). The trial court sentenced defendant to 15 years to life in state prison.
On appeal, defendant argues that the trial court prejudicially erred: (1) by denying his request to instruct on involuntary manslaughter as a lesser included offense of murder, (2) by declining a defense request to modify CALCRIM No. 520 [First or Second Degree Murder With Malice Aforethought], and (3) by sustaining a hearsay objection to testimony by defendant's father about a statement made by defendant. We find no prejudicial errors and affirm the judgment.
I. Background
A. Current Offenses
On May 29, 2016, at around noon, defendant and his father went to a restaurant to eat lunch. They then went to another restaurant to eat "[s]ome appetizers" and drink beer. At some point, they left the second restaurant. Defendant was driving his black Ford F-150 truck.
At about 5:30 p.m., Mark Nishizaki was driving west on Tasman Drive in Santa Clara. He stopped at a red traffic light at the intersection of Tasman Drive and Lick Mill Boulevard. A green Honda Accord was also stopped at the intersection. The Honda was heading north on Lick Mill Road. The Honda waited at the intersection for about one minute, and then moved slowly into the intersection to make a left turn onto Tasman Drive, heading west. There were no other vehicles in the area, and Nishizaki still had a red light. Nishizaki then noticed a black pickup truck driving eastbound on Tasman Drive. The truck "looked like it was going quite fast." Nishizaki's traffic light was still red. Approximately three to six seconds after first seeing the truck, the truck struck the Honda in the intersection. The truck did not appear to brake, slow down, or swerve to avoid hitting the Honda.
The Honda landed at the bottom of an embankment. Its front end and driver's side were severely damaged in the collision. The driver, Carmencita Manaois, was pronounced dead at the scene. Firefighters had to use hydraulic sheers to remove Manaois's body from the passenger side of the vehicle because the passenger compartment was "severely smashed" from the collision.
The truck came to rest on its side. Bystanders pulled defendant and his father out of the truck. When police officers arrived on the scene, defendant's father was lying on the ground unconscious with a bleeding head injury. Defendant "was hovering" in the area. He was "visibly . . . upset" and "hysterical."
Officer Kenia Soto spoke with defendant at the crash site, when defendant was in an ambulance, and at the hospital. Their interactions were recorded by Officer Soto's body camera, and the recording was played at trial. Defendant was initially hysterical and crying and did not answer any questions. After calming down in the ambulance, defendant told Officer Soto that the traffic light had been yellow, and that the Honda had pulled out in front of him to make a turn. He also admitted to having been at a bar in Sunnyvale. He did not remember at what speed he had been driving.
At the hospital, defendant stated that he had been drinking beer at a bar in Sunnyvale and had consumed between four and six beers. He now said that he had been driving at between 35 and 40 miles per hour. Defendant also said he "thought" that the other vehicle "was going fast" as it "pulled out of nowhere" and turned in front of him. Defendant, however, admitted to being at fault for the accident. Defendant stated "he didn't want his father to drive, because his father had been drinking, so he drove" after they left the restaurant. Officer Soto asked defendant if he had considered calling someone to pick them up, or calling "a taxi or Uber." "He said, no, he didn't think about that." Officer Soto asked defendant about the color of the traffic signal. Defendant said he could not remember the color of the signal.
Officer Soto also spoke with defendant's father at the hospital. Defendant's father said that he had been drinking with defendant at a bar, but that he could not remember anything about the collision. Officer Soto asked defendant's father if he "felt safe . . . being the passenger and hav[ing] the defendant drive the vehicle home from the bar." He replied, "no, not really."
At around 7:27 p.m. on the day of the accident, a phlebotomist at Valley Medical Center drew a sample of defendant's blood. The blood alcohol concentration of the sample was 0.279 percent. An expert in toxicology and forensic alcohol analysis determined that a person matching defendant's relevant characteristics would have had a blood alcohol concentration of between 0.299 and 0.319 at the time of the collision. The expert calculated that to reach that blood alcohol concentration, such an individual would have had to consume between nine and 12 "standard" drinks. The expert opined that such an individual "would be too impaired to drive a motor vehicle safely."
A "standard" drink was defined as "one and a half ounces of 40 percent alcohol," "5 ounces of wine" at "12 percent" alcohol, or "12 ounces of beer" at "five percent" alcohol.
The intersection involved in the crash was monitored by high definition surveillance cameras. A traffic investigator used the high definition video to calculate that defendant's truck was travelling 65 miles per hour when it hit the Honda. The speed limit was 40 miles per hour.
The traffic signal at Tasman Drive and Lick Mill Boulevard was "on demand," meaning that the signal changes color when it senses traffic waiting. Before turning from green to red in any direction, it was programmed to show about four and a half seconds of yellow. For added safety, the traffic signal was also programmed to show between a half-second to a full-second of red in all directions before it showed green in any direction.
B. Prior Offenses
At around 12:40 a.m. on October 30, 2004, Santa Clara County Sheriff Lieutenant Dale Unger observed a vehicle travelling at a high rate of speed. Lieutenant Unger followed the vehicle at a speed of 90 miles per hour. The vehicle was swaying into the shoulder and into the adjacent lane. Lieutenant Unger stopped the vehicle, which was driven by defendant. Defendant's breath had a strong odor of alcohol, he had "glassy . . . or glazed eyes," and he had difficulty performing the finger dexterity test. He failed three field sobriety tests and was arrested for driving under the influence. He later pleaded guilty to misdemeanor driving with a blood alcohol concentration of 0.08 percent or more (Veh. Code, § 23152, subd. (b)) and misdemeanor driving without a valid driver's license (Veh. Code, § 12500, subd. (a)).
At around 1:40 a.m. on April 7, 2012, California Highway Patrol Officer Janean Reynolds responded to a report of a collision. Officer Reynolds found that a silver Jeep Liberty had collided with a concrete island in the middle of the road and continued to drive on the dirt shoulder for 300 to 400 feet, before going down a 10- to 12-foot dirt embankment. The Jeep's engine was still running when Officer Reynolds arrived. It appeared to Officer Reynolds that the driver, defendant, had tried to drive away from the scene before becoming stuck in an area covered with brush and small trees. Defendant failed multiple field sobriety tests and a preliminary alcohol screening, and was arrested. He later pleaded guilty to misdemeanor driving with a blood alcohol concentration of 0.08 percent or more (Veh. Code, § 23152, subd. (b)), and admitted to having suffered a prior driving-under-the-influence conviction.
C. Defense Case
Defendant's father testified that defendant came to the United States from Mexico about 20 years ago. Defendant financially supported his parents in Mexico for six or seven years. Defendant eventually brought his parents to the United States and helped his father get a job. Defendant's father testified that the traffic signal was yellow when they passed through it.
An individual who employed defendant as an electrician described him as someone who cared about others and was very aware of his responsibility to others. Another person who had also employed defendant described him as "a very good, caring, responsible human being."
II. Discussion
A. Equal Protection: Involuntary Manslaughter Instruction
Defendant argues that his equal protection rights were violated when the trial court refused his request to instruct on involuntary manslaughter.
1. Background
"Generally, involuntary manslaughter is a lesser offense included within the offense of murder. [Citation.]" (People v. Gutierrez (2002) 28 Cal.4th 1083, 1145.) However, Penal Code section 192, subdivision (b), which defines the crime of involuntary manslaughter, states: "This subdivision shall not apply to acts committed in the driving of a vehicle." Thus, "although involuntary manslaughter is usually a lesser included offense of murder [citations], in the context of drunk driving it is not." (People v. Ferguson (2011) 194 Cal.App.4th 1070, 1082.)
Notwithstanding Penal Code section 192, subdivision (b), in the trial court defendant requested an instruction on involuntary manslaughter as a lesser included offense of second degree murder. He contended that not giving an involuntary manslaughter instruction violated his equal protection rights, and that there was no constitutionally valid reason to treat a defendant who uses a vehicle as an instrumentality of murder differently than a defendant who uses some other instrument. He also contended that failing to instruct on involuntary manslaughter violated his due process rights. The trial court declined to give the requested instruction.
2. Analysis
"The Equal Protection Clause of the Fourteenth Amendment commands that no State shall 'deny to any person within its jurisdiction the equal protection of the laws,' which is essentially a direction that all persons similarly situated should be treated alike." (City of Cleburne v. Cleburne Living Ctr. (1985) 473 U.S. 432, 439.) Equal protection under the state Constitution is substantially the same as equal protection under the federal Constitution. (Manduley v. Superior Court (2002) 27 Cal.4th 537, 571-572.) An equal protection challenge requires a threshold showing that " 'the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.' [Citations.] This initial inquiry is not whether persons are similarly situated for all purposes, but 'whether they are similarly situated for purposes of the law challenged.' [Citation.]" (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.) If this threshold showing is made, " 'a court must next ascertain whether the Legislature has a constitutionally sufficient reason to treat the groups differently.' " (People v. Munoz (2019) 31 Cal.App.5th 143, 162 (Munoz).) "As a general matter, laws 'will be upheld as long as there is any " ' "rational relationship between the disparity of treatment and some legitimate governmental purpose," ' " even if the rational basis for that law never was articulated by—or even relied on by—the Legislature.' " (Ibid.) "However, if the law 'affects a fundamental right,' . . . courts will subject it to heightened scrutiny." (Ibid.)
Defendant contends that "members of his class of implied malice murder defendants" who used a vehicle to commit the unlawful killing "are denied any opportunity to have their jury instructed on manslaughter or involuntary manslaughter as lesser-included offenses of implied malice murder." This is in contrast, he further contends, with "the class of defendants charged with implied malice murder based upon acts committed by means other than driving a vehicle," who "are not subjected to an absolute ban on manslaughter or involuntary manslaughter as lesser-included offenses."
We need not address whether plaintiff has shown disparate treatment of similarly situated groups. Even if we were to assume that the statutory scheme treats similarly situated defendants differently, defendant's equal protection claim still fails because: (1) defendant does not have a fundamental right to an involuntary manslaughter instruction, and (2) there is a rational basis for the statutory scheme.
Defendant identifies the fundamental right at issue as "personal liberty," because it exposes defendant "to a potentially longer prison term" than other similarly situated defendants. However, our high court has held that a defendant " 'does not have a fundamental interest in a specific term of imprisonment or in the designation a particular crime receives.' " (People v. Wilkinson (2004) 33 Cal.4th 821, 838 (Wilkinson).) In addition, the United States Supreme Court has "expressly refrained from recognizing a federal constitutional right to instructions on lesser included offenses in noncapital cases." (People v. Breverman (1998) 19 Cal.4th 142, 165.) Contrary to defendant's arguments, to find that the asserted right was a fundamental right "would be incompatible with the broad discretion the Legislature traditionally has been understood to exercise in defining crimes and specifying punishment." (Wilkinson, at p. 838.)
Because the statutory scheme at issue does not involve a fundamental right, we consider whether there is a rational relationship between the disparity of treatment and some legitimate governmental purpose. Here, the Legislature could reasonably conclude that not allowing for involuntary manslaughter in cases where a vehicle is the instrumentality of murder would further the legitimate governmental purpose of discouraging drivers from driving while intoxicated. (People v. Wolfe (2018) 20 Cal.App.5th 673, 690 ["[T]he Legislature's charging scheme is rationally related to a legitimate governmental purpose: to appropriately punish—and also perhaps to discourage—people from engaging in the highly dangerous conduct of driving under the influence."]; Munoz, supra, 31 Cal.App.5th at p. 160 [concluding that "the Legislature reasonably could distinguish unintentional homicides committed in the driving of a vehicle from other unintentional homicides."].) Because there is a rational relationship between the statutory scheme and a legitimate governmental purpose, defendant has failed to establish a violation of his equal protection rights.
B. Due Process: Involuntary Manslaughter Instruction
Defendant argues that the trial court's refusal to give the jury an involuntary manslaughter instruction violated his due process rights under the federal and state Constitutions. He contends that it was fundamentally unfair for the jury to be presented with an "all or nothing" choice of either convicting him of second degree murder or acquitting him.
"The federal and state Constitutions prohibit the state from depriving any person of life, liberty, or property without due process of law. (U.S. Const., 14th Amend., § 1, Cal. Const., art. 1, § 7.)" (Wolfe, supra, 20 Cal.App.5th at p. 691.) " ' " 'Unless application of a statute impinges upon "fundamental rights," ' " ' it survives a substantive due process challenge so long as ' " 'the application is procedurally fair and reasonably related to a proper legislative goal.' " ' [Citation.]" (Munoz, supra, 31 Cal.App.5th at p. 159.) "The wisdom of the legislation is not at issue in analyzing its constitutionality, and neither the availability of less drastic remedial alternatives nor the legislative failure to solve all related ills at once will invalidate a statute." (Hale v. Morgan (1978) 22 Cal.3d 388, 398 (Hale).)
Defendant's due process challenge to the exclusion of vehicular homicides from the involuntary manslaughter statute fails for the same reasons as his equal protection challenge. As we have explained, the statutory scheme at issue does not implicate a fundamental right. Further, the statutory scheme is reasonably related to the legitimate governmental purpose of punishing and deterring the operation of a motor vehicle while intoxicated. In addition, there is another valid rationale for creating the separate vehicular manslaughter statutes, namely to create a wider range of penalties for an all- too-common form of homicide. The fact that, as a consequence of this statutory scheme, courts no longer must instruct on either involuntary or vehicular manslaughter as a lesser included offense of murder committed while driving a vehicle does not render the scheme invalid. Absent the infringement of a fundamental right, the Legislature may address a problem as it sees fit despite the "availability of less drastic remedial alternatives" without violating due process rights. (Hale, supra, 22 Cal.3d at p. 398.)
In short, the exclusion of vehicular homicides from the involuntary manslaughter statute does not violate due process, and the trial court did not err in declining to give an involuntary manslaughter instruction.
C. CALCRIM No. 520
Defendant argues that the trial court erred by declining his request to modify CALCRIM No. 520 to clarify the meaning of implied malice. He argues that this error violated his federal due process rights.
1. Background
CALCRIM No. 520 provides that a conviction for first or second degree murder requires proof that the defendant committed an act that caused the death of another person and proof of malice aforethought, which may be express or implied. As modified for this case, the instruction explains that a defendant acts with implied malice if: (1) "he intentionally committed an act;" (2) "the natural and probable consequences of the act were dangerous to human life;" (3) "at the time he acted, he knew his act was dangerous to human life;" and (4) "he deliberately acted with conscious disregard to human life." The instruction also explains: "An act causes death if the death is the direct, natural and probable consequence of the act and death would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes." (Italics added.)
Defendant requested to add the following pinpoint language to the instruction: "For the purpose of defining the second element of implied malice, an act is dangerous to life when there is a high probability it will result in death." The court rejected defendant's request to modify the instruction. The court determined that the phrase in the CALCRIM instruction—"the natural and probable consequences of the act were dangerous to human life"—reflected the same standard as in defendant's proposed instruction. In light of this, the court did not see "a good reason to depart from the CALCRIM" instruction.
2. Analysis
A defendant "has a right to an instruction that pinpoints the theory of the defense." (People v. Mincey (1992) 2 Cal.4th 408, 437, italics omitted.) The trial court may, however, "properly refuse an instruction offered by the defendant if it incorrectly states the law, is argumentative, duplicative, or potentially confusing [citation], or if it is not supported by substantial evidence [citation]." (People v. Moon (2005) 37 Cal.4th 1, 30.) We apply the de novo standard of review when determining whether the trial court erred in refusing to give a requested pinpoint instruction. (People v. Johnson (2009) 180 Cal.App.4th 702, 707.)
Our Supreme Court has explained that the concept of implied malice can be phrased in two ways. (People v. Watson (1981) 30 Cal.3d 290, 300.) First, implied malice exists "when a person does ' " 'an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.'". . . '" (Ibid., italics added.) Stated differently, malice may be implied when a person "does an act with a high probability that it will result in death and does it with a base antisocial motive and with a wanton disregard for human life. [Citation.]" (Ibid., italics added; see also People v. Dellinger (1989) 49 Cal.3d 1212, 1219 [the two definitions of implied malice state "one and the same standard"].)
In People v. Nieto Benitez (1992) 4 Cal.4th 91 (Nieto Benitez), the California Supreme Court rejected the argument that the standard implied malice instruction was faulty because it did not state "a requirement that [the] defendant commit the act with a high probability that death will result. [Citation.]" (Id. at p. 111.) The Nieto Benitez court confirmed that the instruction stated an "equivalent" standard by requiring that the defendant commit "an act whose 'natural consequences' are dangerous to life." (Ibid.; see also People v. Cleaves (1991) 229 Cal.App.3d 367, 378 (Cleaves) [the phrase " 'high probability of death' " and the phrase " 'dangerous to human life' " are "synonymous" and "alternative definitions for the same concept"].)
The instruction considered in Nieto Benitez was CALJIC No. 8.31, which provided: " 'Murder of the second degree is the unlawful killing of a human being when: [¶] 1. The killing resulted from an intentional act, [¶] 2. The natural consequences of the act are dangerous to human life, and [¶] 3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life. [¶] When the killing is the direct result of such an act it is not necessary to prove that the defendant intended that the act would result in the death of a human being.' " (Nieto Benitez, supra, 4 Cal.4th at p. 100, italics added.)
Here, defendant argues that the trial court should have given the requested instruction to clarify "what it means for an act to have natural and probable consequences that are 'dangerous to human life.' " He contends that Nieto Benitez differs from the instant case because the defendant in that case did not object to the language or request any clarification of the instruction. This distinction, however, is not meaningful. Although Nieto Benitez did not involve a request for a pinpoint instruction but rather the claim that such an instruction should have been given sua sponte, Nieto Benitez confirms that the phrase "dangerous to human life," as used in CALCRIM No. 520 to describe the nature of the required act, is "synonymous" with the phrase " 'high probability of death,' " which defendant requested that the court give. (Cleaves, supra, 229 Cal.App.3d at p. 378.) Because the requested pinpoint instruction was duplicative of the language already in the CALCRIM instruction, the trial court did not err in declining to give the pinpoint instruction.
Because there was no instructional error under state law, defendant's federal due process claim is unavailing.
D. Hearsay Objection
Defendant argues that the trial court erroneously sustained a hearsay objection during the defense's cross-examination of defendant's father. Defendant contends that the elicited evidence was admissible as nonhearsay, circumstantial evidence of defendant's state of mind. Even if it was hearsay, defendant further contends that it was admissible as an exception to the hearsay rule under Evidence Code section 1250. The Attorney General concedes that the trial court "misapplied the hearsay rules," but contends that the statement was nevertheless inadmissible hearsay evidence, that it was not relevant for the nonhearsay purpose offered, and that even if excluded in error, the error was harmless.
1. Background
Defendant's father was called as a witness for the prosecution. During cross-examination, defense counsel asked him, "Do you recall [defendant], as you got up to leave, telling you that he would drive, because he thought you had too much to drink?" The prosecutor objected on hearsay grounds. Defense counsel asserted that the purpose of eliciting the evidence was "not for the truth, but goes to [defendant's] state of mind," namely, that it was circumstantial evidence of defendant's subjective intent in choosing to drive. The trial court sustained the hearsay objection.
The parties later discussed the ruling outside the presence of the jury. Defense counsel elaborated that the evidence he attempted "to elicit goes directly to [defendant's] state of mind; that is, if he's expressing that he's driving in order to keep his father from driving, because he was too dangerous, because he drank[, then] [t]hat is circumstantial evidence that his intent was not one that can be described by implied malice." The trial court explained, however, that the evidence was subject to exclusion under Evidence Code sections 1251 and 1252. Under Evidence Code section 1251, subdivision (a), the court determined that because "the declarant is the defendant . . . [h]e's not unavailable as required by that section." The court further found that "the statement was not made under circumstances that indicate . . . trustworthiness." The court noted that defendant's father had never previously testified to this at trial or at the preliminary examination, or mentioned it when he was being interviewed by police. The court also cited the "witness's attitude when testifying," "[t]he fact that [defendant's father] has no driver's license and wouldn't have been driving, and the fact that [defendant's father] testified that in his mind . . . defendant was fine to drive and/or only had two beers" at the restaurant. According to the court, "all the circumstances indicate that this is the statement that has the potential to be fabricated," and thus it is not "trustworthy enough to be admitted for the purpose stated."
2. Analysis
We apply "the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence, including one that turns on the hearsay nature of the evidence in question . . . ." (People v. Waidla (2000) 22 Cal.4th 690, 725.) " '[W]hen a trial court's decision rests on an error of law, that decision is an abuse of discretion.' [Citation.]" (People v. Patterson (2017) 2 Cal.5th 885, 894.)
" 'Hearsay evidence' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a).) " 'Under this definition . . . a statement that is offered for some purpose other than to prove the fact stated therein is not hearsay.' " (People v. Fields (1998) 61 Cal.App.4th 1063, 1068.)
Defendant contends that the challenged statement was not hearsay. We disagree. The statement was hearsay because it was an express out-of-court statement of defendant's belief and it was offered to prove the truth of that belief. Defense counsel asked defendant's father if he recalled defendant "telling [him] that he would drive, because he thought [defendant's father] had too much to drink." Defendant argues that the statement was not offered "for its truth but rather its relevance as non-hearsay, circumstantial evidence going to [defendant's] mental state at the time he decided to drive." However, the only way the statement was relevant for that purpose was if the statement was true—i.e., that defendant actually believed that he should drive because his father was too intoxicated to drive. The challenged statement was predicated on defendant's stated belief that he "thought" his father had too much to drink and should not drive. Thus, the trial court correctly concluded that the statement was hearsay.
Evidence Code section 1250 provides a hearsay exception for "evidence of a statement of the declarant's then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) . . . ." In order for this exception to apply, the statement must not have been made under circumstances indicating a "lack of trustworthiness" (Evid. Code, § 1252), and must be offered either "to prove the declarant's state of mind, emotion, or physical sensation," or "to prove or explain acts or conduct of the declarant." (Evid. Code, § 1250, subd. (a).) A prerequisite to this exception is that the declarant's mental state or conduct be placed in issue. (People v. Noguera (1992) 4 Cal.4th 599, 621.) In a murder prosecution predicated on implied malice, a defendant's "state of mind" is placed in issue, as the prosecution must prove an "intent to do a dangerous act" (People v. Spector (2011) 194 Cal.App.4th 1335, 1396), "the natural consequences of which are dangerous to human life." (People v. Swain (1996) 12 Cal.4th 593, 602.)
Here, the statement was admissible under the exception to the hearsay rule for statements of a declarant's then existing state of mind. The challenged testimony concerned a statement made by defendant that he would drive "because he thought [defendant's father] had too much to drink." (Italics added.) Under Evidence Code section 1250, the statement was admissible as it was offered to prove defendant's state of mind, which was at issue because the second degree murder charge required proof that defendant acted with implied malice.
In finding the testimony inadmissible, the trial court misapplied Evidence Code sections 1251 and 1252, neither of which were applicable. First, Evidence Code section 1251 involves statements of a "declarant's previously existing mental or physical state," and is applicable only to mental or physical states that existed "prior" to the statement. (Italics added.) In this case, defendant's statement was about his then existing state of mind. Accordingly, Evidence Code section 1251, subdivision (a)'s requirement that the declarant be "unavailable" was inapplicable. Evidence Code section 1250 has no corresponding unavailability requirement. Second, under Evidence Code section 1252, "[e]vidence of a statement is inadmissible . . . if the statement was made under circumstances such as to indicate its lack of trustworthiness." This requirement applies to the declarant, not to the witness who relates the statement to the trier of fact. (People v. Riccardi (2012) 54 Cal.4th 758, 821, abrogated on another point by People v. Rangel (2016) 62 Cal.4th 1192.) In this case, the trial court erroneously determined that the statement was inadmissible because the witness, defendant's father, lacked credibility and thus the statement lacked trustworthiness.
Although the trial court erred in excluding the evidence, the error was not prejudicial. "It is . . . well settled that the erroneous admission or exclusion of evidence does not require reversal except where the error or errors caused a miscarriage of justice. [Citations.] '[A] "miscarriage of justice" should be declared only when the court, "after an examination of the entire cause, including the evidence," is of the "opinion" that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' " (People v. Richardson (2008) 43 Cal.4th 959, 1001.)
Here, it is not reasonably probable that the jury would have reached a result more favorable to defendant had defendant's statement, as testified to by his father, been admitted. Significantly, a virtually identical statement came into evidence when Officer Soto testified that defendant had told her "he didn't want his father to drive, because his father had been drinking, so he drove." Defense counsel referred to this evidence during closing argument, reminding the jury that there was evidence that defendant drove because he thought his father was too drunk to drive. The erroneously excluded statement was therefore cumulative of other admitted evidence. Under the applicable standard of review, the erroneous exclusion of defendant's statement to his father was harmless.
III. Disposition
The judgment is affirmed.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Premo, Acting P. J. /s/_________
Elia, J.